Defences in Tort

What are the general defences

1. Consent / Volenti non fit injuria

2. Contributory negligence

What are the types of consent

Consent to the Unlawful Act

Volenti Non Fit Injuria

What is Consent to the Unlawful Act

C authorises D’s conduct, making it lawful, so tort fails (e.g., medical treatment, sports, touching in consented situations).

Which torts does Consent to the Unlawful Act apply to ?

Trespass to the person torts

case for consent to the unlawful act

Devi v West Midlands RHA [1980]

Devi v West Midlands RHA [1980]

C consented to a minor operation, but D performed a hysterectomy.

Held: Consent was not valid for the larger procedure → battery succeeded.

Principle:

• Consent must be specific.

• It completely negates the tort if valid.

what does Volenti Non Fit Injuria translate to ?

"No legal wrong is done to one who consents."

What does volenti apply to ?

Negligence, CAN NOT BE APPLIED TO TRESPASS TO THE PERSON

Elements of Volenti ?

1. C agreed to assume the legal risk

2. Agreement was voluntary (no duress, mental capacity)

3. Full knowledge of the risk

Case for assumption of risk ?

Nettleship

How is Nettleship relevant to assumption of risk ?

Learner driver crashed and injured her instructor. Instructor knew there was a risk of accident (obvious in driving).

Did he agree to accept the risk of the learner’s negligence? No.

Key point:

Just knowing a risk exists is not the same as consenting to it.

Volenti only works if C actively agrees to take the risk of negligence, not just the ordinary danger.

So:

Instructor knew driving is risky → risk of accident exists, But he did not agree to waive his right to sue → volenti fails

when dealing with agreement must be voluntary what sort of sub sections do we look at ?

1. No duress

2. C must have mental capacity

case for there must be no duress

Smith v Baker

Smith v Baker

• Employee forced to continue dangerous work under threat of dismissal.

• Held: not voluntary → volenti fails.

case showcasing for where the C must have mental capacity

Kirkham v Chief Constable of Greater Manchester [1990]

Reeves v Commissioner of Police [2000]

Corr v IBC Vehicles [2008]

Kirkham v Chief Constable of Greater Manchester [1990]

suicide due to depression → volenti fails (impaired judgement)

Reeves v Commissioner of Police [2000]

suicide of prisoner; risk police were meant to prevent → volenti fails

Corr v IBC Vehicles [2008]

suicide caused by depression due to D’s negligence → volenti fails

how do u deal with intoxication with volenti ?

Being drunk does NOT automatically mean the claimant consented to the legal risk.

If intoxication destroys understanding, then volenti fails.
If the claimant was still aware enough to knowingly take the risk, volenti can succeed.

cases for intoxication and volenti ?

Morris v Murray [1991]

White Lion Hotel v James [2021]

Morris v Murray [1991]

• C went on a flight with a pilot who was extremely drunk.

• C was also drunk but clearly aware how dangerous it was.

• They took off anyway → crash.

Held:
✔ Volenti applied
Why?

• Even though C was drunk, he was aware of the extreme danger

• And he chose to go ahead anyway

Principle:

If C (even drunk) actually appreciated the risk and voluntarily accepted it, volenti applies.

White Lion Hotel v James [2021]

• C was intoxicated and fell from a hotel window.

• Hotel argued volenti.

Held:
❌ Volenti failed
Why?

• No evidence C understood or accepted any legal risk

• Drunken behaviour alone doesn't show consent

Principle:

Drunkenness alone is not consent.
Must prove C consciously accepted the legal risk.

what do u check for knowledge of the risk ?

that the c knew the nature and extent of the risk.

case for knowledge of the risk ?

ICI v Shatwell [1965]

CI v Shatwell [1965]

• Two brothers deliberately ignored safety rules.

• Held: volenti succeeded because they knowingly accepted the risk.

Principle:

• Must be conscious, informed assumption of the risk, not just casual awareness

is consent a full or partial defence ?

Full

Is contributory a full or partial defence ?

Partial

if a defence is partial what does this mean ?

it only reduces damages

Where is the law for contributory set out in ?

Law Reform (Contributory Negligence) Act 1945.

Key s for the Law Reform (Contributory Negligence) Act 1945.

s.1

s.1 Law Reform (Contributory Negligence) Act 1945.

If damage partly caused by C’s own fault → damages reduced “just and equitable”.

Elements of Contributory

1. C at fault

2. C’s fault contributed causally to damage

3. Court apportionment (%)

What does fault include ?

Fault under s.4 gives fault an unusually wide definition, includes:

• Negligence

• Breach of statutory duty

• ANY act that would previously have been contributory negligence

what standard of care do we use

reasonable person in C’s position

Leading case for Fault ?

Jones v Livox Quarries [1952]

Jones v Livox Quarries [1952]

C rode on the back of a moving vehicle when forbidden; was hit by another truck.

Principle (Denning):
1⃣ C must fail to take reasonable care for their own safety
2⃣ C must reasonably foresee that they might be harmed if they acted as they did

can intentional or even deliberate acts count as contributory ?

yes

evidence that says intentional/deliberate acts count as contributory

Reeves v Commissioner of Police [2000]

Reeves v Commissioner of Police [2000]Reeves v Commissioner of Police [2000]

Prisoner of sound mind committed suicide in custody. Police argued volenti or contributory negligence.

Held:
✔ Suicide can be contributory negligence → 50% reduction
✘ Suicide cannot be volenti because the very duty of the police was to prevent suicide.

Key principle:

Even intentional acts (like suicide) can be claimant fault if they contribute to the damage.

what do u do for '“ C’s fault contributed casually to damage”

Even if C was careless, CN only applies if C’s fault contributed to the damage, not merely the accident.

Case for where a casual link must be established between C’s fault and damage ?

Caswell v Powell Duffryn [1940]

Froom v Butcher [1976]

Caswell v Powell Duffryn [1940]

Miner injured in chaotic conditions underground; employer argued CN.

Held:

• Working in dangerous, exhausting environment → mistakes are more excusable.

• Court emphasised the need for a real causal link between claimant’s conduct and the damage.

Froom v Butcher [1976]

C injured in crash caused by D’s negligent driving. C wasn’t wearing a seatbelt, which made injuries worse.

Held (Lord Denning):

• Accident caused by D

• Injury severity partly caused by C’s failure to wear belt
  → CN applies

The Froom Tariff:

• Injury would have been avoided entirely → 25% reduction

• Injury would have been less severe → 15% reduction

• No difference → 0%

Same logic applies to helmets.
👉 Capps v Miller [1989] — motorcycle helmet loosely fastened → 10% reduction.

Finally, how do courts figure out how much damages should be reduced by ?

Two factors:
1⃣ Relative blameworthiness
2⃣ Relative causal potency

This means courts look at:

• Who contributed more to the accident/injury?

• Whose conduct was morally worse? (speeding vs minor carelessness)

Leading authority for how courts determine apportionment ?

Jackson v Murray [2015]

Jackson v Murray [2015]

13-year-old girl ran from behind a bus into the road and was hit by speeding driver.

Held (Supreme Court):

• Both parties contributed substantially

• Final apportionment: 50/50

Apportionment is a “rough and ready exercise”.